Adding Insult to Injury: Automobile Accident Claims in New York City

If it bleeds, it leads

Car crash victims, especially those with obvious, bloody wounds, can receive immediate, typically excellent, trauma care in NYC. Yet some victims refuse, or fail to seek, medical aid — because they lack insurance or money, or because they mistakenly think they weren’t hurt.

“Your symptoms may be misleading,” warns Dr. Edward Fishkin, medical director of Woodhull Medical Center, a public hospital in Queens. “It’s the way someone was injured, the ‘mechanism of injury’ that matters.” Head injuries are particularly dangerous. But simply breaking a fall with your hand can result in a wrist fracture.

Sometimes, the crash impairs the victim’s judgment. Crash victims typically experience a flood of adrenaline, called an “acute stress reaction,” Fishkin says, which can mask serious pain or injury and makes a person prone to fight, or to flee the scene, out of instinct.

Jon Hill
Jon Hill avoided colliding with a cab door on his bike, but says he sustained a painful, long-term ligament injury.
Photo by Carol A. Wood.

Injuries that seem innocuous at first can have a long-term impact. Jon Hill, 41, found this out the hard way when a cab stopped suddenly and its passenger flung open the door. Hill avoided a collision by jumping off his bike, landing hard on both feet. The passenger ran away, and the driver sped off when Hill began to berate him.

Hill, a Hell’s Kitchen resident who works in information technology, got back on his bike, but within a block was in too much pain to stand. He checked into a hospital under his own health policy, and was diagnosed with a sprained ligament. Two years later, Hill says his left ankle has lost range of motion, and his left leg is nearly a quarter-inch shorter than the right, resulting in lower back pain, many thousands of dollars in physical therapy paid by his health insurer, and $10,000 in out-of-pocket costs.

Victims may also leave the scene without treatment because nonemergency response time for police and ambulance can exceed 30 and even 60 minutes. But it’s best to wait. Any injury that is ignored can become “difficult to treat later on,” Fishkin advises. And getting a police accident report, written by an officer, is more valuable in court than the self-reported DMV form (the MV-104), according to Adam D. White, a Manhattan attorney.

Yet even the police sometimes encourage the crash victim to walk away. “Francisco,” a cyclist who requested anonymity because of pending litigation, says an officer suggested he and the driver “work it out between you.” Francisco insisted on getting an accident report. This was fortunate, because his injury — a hairline fracture — wasn’t diagnosed until he had surgery much later, after months of pain and lost work.

Like a circle in a spiral

In the United States, insurance benefits are mandated by each state but are settled and paid by private companies. This public-private venture is supposed to ensure market competition and lower costs.

One thing is certain: it creates significant confusion, even for legal experts.

In New York’s No-Fault scheme, the “responsible party” (the party who will pay the claim) is typically the driver’s insurer. But it may be a state agency, such as disability insurance or workers’ comp. In some circumstances, the victim’s auto or home insurer might pay. If a victim submits a claim to the wrong insurer, it will be rejected, and the delay may put them beyond the 30-day deadline for filing.

Because these possibilities are nowhere explained, crash victims who don’t know how to proceed may give up. Or they may hire an attorney. Either outcome is contrary to the stated aims of the law: to return crash victims to health as quickly as possible, while reducing costs and lawsuits.

White, the personal injury attorney, points out that insurers may lawfully deny an otherwise valid claim in circumstances where they’re not obligated to pay. It’s up to the crash victim to find out who is obligated.

Deepening the confusion is the reliance upon auto insurers for settling medical claims related to car crashes. This leaves New Yorkers who do not have car insurance — as noted, the majority of city residents — without an agent (with legally binding duties) to turn to.

The proliferation of insurers, forms and deadlines is confusing for patients and medical providers alike. Joe Herzfeld, a 57-year-old college teacher from the Kensington section of Brooklyn, was sideswiped on his bike by a driver, who stayed on the scene and cooperated with him and the police. Herzfeld was fortunately not injured seriously. But his doctor’s office charged his health insurer for his visit, rather than the driver’s No-Fault carrier, requiring six months of phone calls to correct. “It was a tremendous nuisance,” Herzfeld says.

Fishkin believes that a simplified or single-payer health insurance system, with a single set of forms and authorization process, would make everything easier. “It would probably save money and let us do more with less staff,” Fishkin says. In the current system, insurers “play ‘gotcha’ all time, because the wrong box is checked or because you missed the deadline by 24 hours.”

The kindness of strangers

The information gaps in this system must be filled by the crash victims themselves. Much depends on choices made moments after the crash — when their judgment is likely to be impaired.

For this reason, a quick-thinking witness can make or break a victim’s financial — even medical — outcomes.

When Neil Berkson left his Greenwich Village apartment for a 6 a.m. bike ride, Eighth Avenue was nearly empty. But in Midtown, a car ran the light and broadsided him before speeding away. In shock, the retired attorney struggled to get up and away from the scene, his right elbow shattered. A nearby coffee vendor ran to his side and convinced Berkson to wait while he called an ambulance. He stayed to explain what happened to the police and the emergency medical technicians (EMTs).

This coffee vendor did all the right things, according to three ambulance workers interviewed on duty recently in SoHo. Phoning 911 with the exact location is the best thing a witness can do. Writing down what happened to the victim, or telling the EMTs directly, helps responders treat the injury and may even save the victim’s life. (The workers declined to give their names because they were not authorized to speak to the press.)

Some witnesses, however, unwisely try to give medical aid themselves. They may try to make the victim sit up, drink water or move elsewhere. These actions can cause permanent damage, Fishkin warns, if a head or spinal injury is involved. Emergency protocols forbid unnecessarily moving the victim. The NYPD Patrol Guide, for instance, specifies that only a doctor, paramedic or emergency medical technician may give medical aid before an ambulance arrives. Yet the dangers of improper treatment are, like car crash and insurance procedures generally, little publicized or understood.

Kim J., a 50-year-old Manhattan business executive, was luckily spared further injury in such a case. (She asked that her last name not be used to protect her privacy from Google searches.) Nicked by a red-light-running bus in Midtown, Kim says she landed beneath the bus’s bumper, severely bruised and tangled up in her bicycle. Stunned, she felt passersby suddenly lift her to the curb — even though traffic had stopped and she was in no danger. Yet only one witness, an out-of-state tourist, stayed to give police a statement and phone number, which Kim credits with assisting her property damage claim.

Nancy, a petite woman interviewed on a M103 bus who did not give her last name, described being struck by a hit-and-run cab in East Midtown. Though the street was full of people, no one got the license plate number. Nancy spent a week in the hospital for knee and foot surgery, and four years later, remains visibly in pain. She says she has not worked since the crash and used her four-figure settlement to pay her back rent.

In light of these common hazards, state and city authorities should educate the public on providing the right kind of assistance in a car crash. Doing so could improve emergency responses and the accuracy of reporting — or at least ensure that bystanders “do no harm.”


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